Judge orders Berkeley medical marijuana measure back on ballot

September 29, 2007

BERKELEY, Calif.—A judge ordered a failed 2004 city initiative on medical marijuana returned to the ballot next year because county election officials failed to hand over data from voting machines.

Superior Court Judge Winifred Smith also ruled Tuesday that Alameda County officials should pay attorneys' fees and reimburse a medical marijuana group more than $22,000 for the costs it incurred during a disputed recount shortly after the November 2004 election.

Smith ruled that county officials had failed to retrieve backup data from electronic voting machines, logs of activity on the machines and other records as she had specifically ordered.

Instead, the county ignored the request and returned the devices to their manufacturer, Diebold Election Systems, after the measure's advocates had sued the county seeking access to the data, the judge said.

"Why the county did so is anybody's guess," the judge wrote. "But the result is absolutely certain: The information on those machines is lost completely."

Smith ordered the Berkeley measure returned to the ballot in November 2008 but said she first wanted to review its exact text.

Richard Winnie, Alameda County counsel, said the mistakes had been made during a turbulent period in which "the method of handling electronic voting data was very much undecided."

According to the county's certified results, the measure lost, 25,167 to 24,976. The initiative lost again in a recount.